10th Amendment: States' rights

Dec. 15, 2013

A Louisiana farmer could grow tomatoes on Louisiana soil, using only Louisiana fertilizers and selling only to only Louisiana markets. But because those tomatoes eventually could be sold in Texas, Caddo District Judge Brady O’Callaghan says, Congress could make a claim at regulating that market based on the commerce clause. / Times Photo

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“Seldom do we ask now if Congress has the power to do something. We just assume they do. Health care, drug enforcement, you name the social issue. To me, that suggests the current interpretation of the commerce clause is broader than the founders intended,” says Caddo District Judge Brady O’Callaghan. / Submitted photo

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The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

These words from the 10th Amendment quite simply mean: If it’s not written in the U.S. Constitution, the states hold sway.

“The 10th Amendment, to me, is an underpinning of our government,” says Caddo District Judge Brady O’Callaghan. “Clearly, the founders contemplated certain powers the federal government wasn’t supposed to have.”

Although the 10th Amendment adds nothing to the original text of the Constitution, O’Callaghan points to the simple language as a bedrock of federalism and decentralized power.

But it is an embattled piece of the document.

“Seldom do we ask now if Congress has the power to do something. We just assume they do. Health care, drug enforcement, you name the social issue,” O’Callaghan says. “To me, that suggests the current interpretation of the commerce clause is broader than the founders intended.”

The commerce clause gives Congress the authority to regulate anything that involves the transfer or creation of revenue across state lines. Over the decades, that power has been used to give the federal government authority over issues as diverse as drug enforcement, marriage and health care.

A Louisiana farmer could grow tomatoes on Louisiana soil, using only Louisiana fertilizers and selling only to only Louisiana markets. But because those tomatoes eventually could be sold in Texas, O’Callaghan says, Congress could make a claim at regulating that market based on the commerce clause.

“The expansion of the commerce clause has limited the reading of the 10th Amendment. Once that’s done, powers are expanded much more broadly for the federal government. So you don’t see it respected as often as it should be, and there’s less true federalism than I think would benefit us.”

One case in which the 10th Amendment trumped the commerce clause — U.S. v Lopez (1995) — found the Gun-Free School Zones Act of 1990 was an overreach of congressional authority. But the 10th Amendment is rarely a central argument, O’Callaghan says.